When National Security Trumps Individual Rights

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1 When National Security Trumps Individual Rights A Lesson by Linda Weber SUMMARY On December 18, 1944, the Supreme Court handed down one of its most controversial decisions when it upheld the government s decision to intern of all persons of Japanese ancestry (both alien and non-alien) on the grounds of national security. Over two-thirds of the Japanese in America were citizens, and the internment took away their constitutional rights. In 1942, Fred Korematsu, a 22-year-old Japanese American, refused an evacuation order and was arrested, then convicted of a felony. He challenged his conviction in court on constitutional grounds, and the case was appealed to the Supreme Court. Korematsu lost his Supreme Court case in a 6-3 decision, but when new evidence surfaced 40 years later proving the government had withheld evidence, Korematsu went back to federal court to have his conviction vacated. This time, he won. Today, however, the troublesome Supreme Court precedent still stands as good law. Fred Korematsu was an ordinary citizen who took an extraordinary stand. Through his pursuit of justice, the country learned about what can happen when national security trumps civil liberties. In this lesson, students evaluate the consequences of past events and decisions related to the Supreme Court case Korematsu v. United States (1944). They consider the challenges involved when trying to balance civil liberties and national security during threatening times and reflect on the lessons learned about civil liberties from the justices in Korematsu. NOTES AND CONSIDERATIONS This lesson presumes that students have some experience reviewing Supreme Court cases. Technology is relied on to enhance learning. This is a self-contained lesson with a variety of resources and activities that can be adapted to different lengths of classes and levels of students. Snapshot of Lesson Grades: Middle School; High School (Focus) Subject Focus: Civics/Government Estimated Time: 3 days Alignment to National Standards for Civics and Government: Grades 5-8; Grades 9-12 Materials/Equipment Needed: Video: Korematsu and Civil Liberties available on DVD and at korematsu-civil-liberties Computer lab Materials Included: Readings and Resources Video Transcript: Korematsu and Civil Liberties Chapter 11: Internment of Japanese Americans during World War II from The Pursuit of Justice by Kermit Hall Full text of Supreme Court case: Toyosaburo Korematsu v. United States (1944) Executive Order 9066 U.S. Constitution: Articles I & II; Fifth Amendment; Fourteenth Amendment Student Activities Class Prep: Assignment Sheet Timeline: Chronology Tells the Story Case Profile: Lessons in Civil Liberties from Korematsu v. United States Teacher Materials Timeline Key National Standards for Civics & Government Standards level detail for grades 5-8,

2 TOPICS Constitutional foundations Civil liberties Role and responsibilities of government War powers U.S. Supreme Court Japanese internment NATIONAL STANDARDS Document: National Standards for Civics and Government (1994) Center for Civic Education Grades 5-8 Organizing Questions The national content standards for civics and government are organized under five significant questions. The following outline lists the high-level organizing questions supported by this lesson. I. What are civic life, politics, and government? A. What is civic life? What is politics? What is government? Why are government and politics necessary? What purposes should government serve? B. What are the essential characteristics of limited and unlimited government? C. What are the nature and purposes of constitutions? D. What are alternative ways of organizing constitutional governments? II. What are the foundations of the American political system? A. What is the American idea of constitutional government? B. What are the distinctive characteristics of American society? C. What is American political culture? D. What values and principles are basic to American constitutional democracy? III. How does the government established by the Constitution embody the purposes, values, and principles of American democracy? A. How are power and responsibility distributed, shared, and limited in the government established by the United States Constitution? E. What is the place of law in the American constitutional system? F. How does the American political system provide for choice and opportunities for participation? V. What are the roles of the citizen in American democracy? A. What is citizenship? B. What are the rights of citizens? C. What are the responsibilities of citizens? D. What dispositions or traits of character are important to the preservation and improvement of American constitutional democracy? E. How can citizens take part in civic life? 2

3 Grades 9-12 Organizing Questions The national content standards for civics and government are organized under five significant questions. The following outline lists the high-level organizing questions supported by this lesson. I. What are civic life, politics, and government? A. What is civic life? What is politics? What is government? Why are government and politics necessary? What purposes should government serve? B. What are the essential characteristics of limited and unlimited government? D. What are alternative ways of organizing constitutional governments? II. What are the foundations of the American political system? A. What is the American idea of constitutional government? B. What are the distinctive characteristics of American society? C. What is American political culture? D. What values and principles are basic to American constitutional democracy? III. How does the government established by the Constitution embody the purposes, values, and principles of American democracy? A. How are power and responsibility distributed, shared, and limited in the government established by the United States Constitution? B. How is the national government organized, and what does it do? D. What is the place of law in the American constitutional system? E. How does the American political system provide for choice and opportunities for participation? IV. What is the relationship of the United States to other nations and to world affairs? C. How has the United States influenced other nations, and how have other nations influenced American politics and society? V. What are the roles of the citizen in American democracy? B. What are the rights of citizens? C. What are the responsibilities of citizens? D. What civic dispositions or traits of private and public character are important to the preservation and improvement of American constitutional democracy? E. How can citizens take part in civic life? Note: A more detailed standards-level alignment related to these questions can be found in the Standards section at end of this lesson plan. 3

4 STUDENT OUTCOMES Knowledge, skills, and dispositions Students will Identify cause-and-effect relationships between historical events, governmental decisions, and changes in society. 2. Explain the lessons learned about civil liberties from Korematsu v. United States. 3. Identify the distribution of war powers as set forth in the Constitution. 4. Make observations and conclusions about the responsibilities and functions of government during wartime. 5. Appreciate the impact that one citizen can have when justice is pursued under the Constitution. Integrated Skills 1. Information literacy skills Students will... Analyze primary and secondary sources to gather information. Organize and analyze information Use skimming and search skills. Make informed decisions. Use technology as a tool to support learning. 2. Media literacy skills Students will... Read, view, and listen to information delivered via different media formats in order to make inferences and gather information 3. Communication skills Students will... Write and speak clearly to contribute ideas, information, and express own point of view. Listen for understanding. Collaborate with others to deepen understanding 4. Study skills Students will... Manage time and materials. Organize work effectively 5. Thinking skills Students will... Describe and recall information. Explain ideas or concepts. Make connections between concepts and principles. Draw conclusions. Synthesize information. Use sound reasoning and logic. Distinguish the facts. Evaluate opposing viewpoints. 6. Problem-solving & Decision-making Students will... Ask meaningful questions. Consider diverse perspectives. Make informed decisions. Explore alternative solutions. 7. Participation skills Students will... Contribute to small and large group discussion. Work responsibly both individually and with diverse people. Express own beliefs, feelings, and convictions. Show initiative and self-direction. 4

5 ASSESSMENT Evidence of understanding may be gathered from student performance related to the following: 1. Student activities 2. Participation in small and large group discussions VOCABULARY checks and balances the way power is divided among the three branches of the federal government and the states ensures that each checks that is, restrains and balances the others. The branches share certain powers but also exercise some exclusive powers. civil liberties basic individual rights of all citizens, as expressed in the Bill of Rights and reinforced by the 14th Amendment. These include such liberties as freedom of speech, press, religion, and assembly; freedom from unreasonable search and seizure; and the right to privacy. due process of the law guaranteed by the Fifth and Fourteenth Amendments, governments cannot deprive people of their lives, liberty, or property without due process, that is, appropriate legal proceedings. equal protection of the law guaranteed by the Fourteenth Amendment, all citizens have equal protection of the law. This provision prevents the government from discriminating against any particular group, and ensures citizens civil rights. espionage the practice of gathering, transmitting, or losing through gross negligence information relating to the defense of the U.S. with the intent that or with reason to believe that the information will be used to the injury of the U.S. or the advantage of a foreign nation executive order legally binding orders issued by the president felony a crime that has a greater punishment imposed by statute than that imposed on a misdemeanor; a federal crime for which the punishment may be death or imprisonment for more than a year fifth column activity people who aid the enemy from within their own country. good law laws that still apply because they have not been officially overturned. rights a person s justifiable claim, protected by law, to act or be treated in a certain way. separation of powers specific powers assigned to each branch of the federal government by the Constitution. Some powers belong exclusively to a single branch; others are shared among the branches. war powers provisions of the Constitution that define government powers related to war. Only Congress can declare a war and appropriate the funds necessary to fight it, but the president, as commander in chief of the military, has considerable latitude in sending American troops into combat. writ of coram nobis The Supreme Court has held that the writ of error coram nobis is available only when the challenged conviction is one that has been obtained as a result of errors of the most fundamental character that have rendered the proceeding itself irregular and invalid. Sources for Definitions Annenberg Classroom Glossary Merriam-Webster s Dictionary of Law 5

6 LESSON OVERVIEW Class-Prep Assignment: Advance preparation is important for students so they have the background knowledge and understanding needed for viewing the video on the first day; therefore, a Class Prep Assignment Sheet is provided. DAY 1: Justice Lost; Justice Found; Justice Pending Students view the video Korematsu and Civil Liberties to learn about the way civil liberties can be lost during times of war and what a Japanese American named Fred Korematsu did for all Americans when he pursued justice under the Constitution. The troubling precedent established by the Supreme Court ruling in Korematsu s case, however, has not been challenged, which leaves justice pending. DAY 2: Chronology Tells the Story Students gain historical understanding and perspective by exploring the chronology and relationship of events and decisions surrounding the internment of Japanese Americans that prompted the U.S. government to restrict human rights on the grounds of national security. DAY 3: Lessons in Civil Liberties from Korematsu v. United States (1944) Students analyze Korematsu v. United States to extract details, create a case profile, and identify lessons learned about civil liberties from the justices own words. TEACHING ACTIVITIES CLASS-PREP ASSIGNMENT In preparation for the first class session, students complete a Class Prep Assignment Sheet (included) that requires background reading and responses to questions. Readings (copies are also included with this lesson) Chapter 11: Internment of Japanese Americans during World War II from The Pursuit of Justice by Kermit Hall Ch_11.pdf Understanding Democracy: A Hip Pocket Guide (Separation of Powers, pg ) U.S. Constitution o Fifth Amendment o Fourteenth Amendment o Article I, II: War Powers Clauses The Annenberg Guide to the United States Constitution 6

7 DAY 1: JUSTICE LOST; JUSTICE FOUND; JUSTICE PENDING Overview: The video students watch today, Korematsu and Civil Liberties, tells the story of Fred Korematsu and the turbulent times that led the Supreme Court to uphold the denial of civil liberties in the interest of national security. Though troubling, the precedent still stands today as good law. Goal: Students identify cause-and-effect relationships between historical events and governmental decisions that resulted in national security trumping civil liberties. Materials/Equipment Needed: Video: Korematsu and Civil Liberties available on DVD and at Computer with Internet connection and projector for class viewing Student Materials Completed Class Prep Assignment Sheet Timeline: Chronology Tells the Story (1 per student) Before Viewing: 1. Discuss the questions on the Class Prep Assignment Sheet. 2. Introduce the video by reading the words of President Clinton when Fred Korematsu was awarded the Presidential Medal of Freedom in The President s introductory remarks (in part): All of our honorees have helped America to widen the circle of democracy by fighting for human rights, by righting social wrongs, by empowering others to achieve, by preserving our precious environment, by extending peace around the world. Every person here has done so by rising in remarkable ways to America s highest calling, the calling, as the First Lady said, of active citizenship. The President s words to Mr. Korematsu: In 1942, an ordinary American took an extraordinary stand. Fred Korematsu boldly opposed the forced internment of Japanese Americans during World War II. After being convicted for failing to report for relocation, Mr. Korematsu took his case all the way to the Supreme Court. The high court ruled against him. But 39 years later, he had his conviction overturned in federal court, empowering tens of thousands of Japanese Americans and giving him what he said he wanted most of all the chance to feel like an American once again. In the long history of our country s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy. Brown. Parks. To that distinguished list, today we add the name of Fred Korematsu. Source: html 3. Distribute the timeline activity and go over the instructions. Work begins AFTER the video. During Viewing: Students watch and listen to get the flow of the story. On Day 2, they use the video as a resource. 7

8 DAY 2: CHRONOLOGY TELLS THE STORY Overview: Students review the video Korematsu and Civil Liberties and use other resources to identify the chronology and relationship of events and decisions that prompted the U.S. government to restrict the human rights of Fred Korematsu on the grounds of national security. Goal: Analyze and interpret the causes and effects of events that led to the Supreme Court ruling in Korematsu v. United States and reflect on the importance of the case for us today. Materials/Equipment Needed: Computer lab with Internet connection Video: Korematsu and Civil Liberties available on DVD and at Readings Included Chapter 11: Internment of Japanese Americans during World War II from The Pursuit of Justice by Kermit Hall Also may be viewed/downloaded from Annenberg Classroom: U.S. Constitution o Fifth Amendment o Fourteenth Amendment Also may be viewed /downloaded from The Annenberg Guide to the United States Constitution: What it says. What it means. Procedure: Student Materials Timeline: Chronology Tells the Story Student Materials Timeline Key By today, students will have viewed the video 1 time. On this day, they will use it as a resource to gather information and complete the timeline activity. Note: Other resources may also be used as a few dates/events were added for more historical context. 8

9 DAY 3: LESSONS FROM KOREMATSU V. UNITED STATES Overview: Students analyze the Supreme Court case Korematsu v. United States to extract details, create a case profile, and identify lessons learned about civil liberties from the justices own words. Goal: Explore the reasoning behind different points of view regarding the restriction of civil liberties on the grounds of national security. Materials/Equipment Needed: Procedure: Computer lab Readings Full text of Supreme Court case: Toyosaburo Korematsu v. United States, (1944) A copy is included with this lesson or it can be accessed from United States Reports at this link: Korematsu Obituary: Seattle Times, March 31, 2005 Fred Korematsu, 86, fought World War II internment, dies The article can be read at this link: Student Materials Activity: Lessons in Civil Liberties from Korematsu v. United States 1. Allow students time to complete the activity, then regroup to discuss the Wrap-up questions on the last page. 2. Conclude the lesson by having the students read the obituary for Fred Korematsu, then discuss the closing comments by his coram nobis lawyer, Dale Minami. (2nd to last paragraph) What Fred represents as a symbol is the significance of dissent in a free society, Minami said today. A courageous stance by individuals like Fred helps strengthen our Constitution and inspires us to be a stronger country. 9

10 EXTENSION ACTIVITIES Have more time to teach? On October 3, 2003, Geoffrey Stone from the University of Chicago (one of the speakers in the video) filed a brief in the Supreme Court on behalf of Fred Korematsu. In it, he argues for a more delicate balance of power between the three branches of government and supports his position with examples from history. o Read about the brief in this article from the University of Chicago Chronicle. Stone Writes Fred Korematsu s amicus brief as history repeats... o Read the brief: Brief Amicus Curiae Of Fred Korematsu Research to learn about the history of presidential executive orders and the controversies that surround their use. RESOURCES Annenberg Classroom Video: Korematsu and Civil Liberties Our Rights by David J. Bodenhamer The Pursuit of Justice: Supreme Court Decisions that Shaped America Kermit L. Hall & John J. Patrick The Annenberg Guide to the United States Constitution Our Constitution by Donald A. Ritchie Civil Liberties in Wartime Primary Documents Executive Order Public Law 503 Exclusion Order No

11 Other Resources Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944) OYEZ Landmark Supreme Court Cases CSR Report to Congress Presidential Directives: Background and Overview, Updated April 23, In the long history of our country s constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy. Brown. Parks. To that distinguished list, today we add the name of Fred Korematsu. President Clinton 1998 Ceremony for the Presidential Medal of Freedom 11

12 Readings & Resources Video Transcript: Korematsu and Civil Liberties Chapter 11: Internment of Japanese Americans During World War II from The Pursuit of Justice by Kermit Hall Full text of Supreme Court case: Toyosaburo Korematsu v. United States (1944) Executive Order 9066 U.S. Constitution o Articles I & II o Fifth Amendment o Fourteenth Amendment 12

13 The Constitution Project Korematsu and Civil Liberties Video Transcript: Korematsu and Civil Liberties Video Transcript: Korematsu and Civil Liberties December 7 th, A Japanese fleet had crossed the Pacific undetected, launching planes into the morning sky. The bombs that dropped on Pearl Harbor that morning brought death, destruction, and a nationwide sense of terror. AKHIL AMAR: AMERICANS HAD BEEN ATTACKED ON AMERICAN SOIL. IT WAS A SNEAK ATTACK. WE DIDN T SEE IT COMING. AND THERE WAS PANIC. FRANK WU: THAT SHOOK THE PSYCHE OF THE NATION. BEFORE PEARL HARBOR THE UNITED STATES HAD NEVER SUFFERED A SNEAK ATTACK OF THAT MAGNITUDE. AKHIL AMAR: PEOPLE WERE WORRIED, WELL, IF WE DIDN T SEE THAT COMING // MAYBE SAN FRANCISCO OR LOS ANGELES WILL BE NEXT. How does the Constitution guide us when the nation is governed by fear? During times of peace, the rules are clear. Three separate branches of equal power, each with the duty to enforce the Constitution. But when the nation is at war, that balance of power tips in favor of the President. Associate Justice of the United States Supreme Court, Stephen G. Breyer: JUSTICE STEPHEN G. BREYER: HE HAS AUTHORITY TO WAGE THE WAR // HE CAN DO THINGS IN THE CASE OF INVASION FOR EXAMPLE THAT HE MIGHT NOT BE ABLE TO DO WERE THERE NO INVASION. The balance also tips in favor of national security over civil liberties. Associate Justice of the United States Supreme Court, Anthony Kennedy: JUSTICE ANTHONY KENNEDY: THE CONSTITUTION IS AT ITS MOST VULNERABLE WHEN WE RE IN A CRISIS. // THIS CLARITY OF VISION THAT WE NEED TO SEE THE MEANING OF JUSTICE, // TENDS TO BE BLURRED. JUSTICE STEPHEN G. BREYER: WHEN YOU GET INTO A WAR // YOU DO NOT KNOW WHAT KIND OF BOX YOU ARE OPENING UP. IT IS JUST FILLED WITH EMOTION, HATRED, VIOLENCE, AND IT ALL COMES OUT. GEOFFREY STONE: ONE OF THE REAL CHALLENGES OF A FREE SOCIETY IS TO PROTECT ITSELF // WHILE AT THE SAME TIME MAINTAINING AN ADHERENCE TO THOSE VALUES THAT MAKE IT A FREE SOCIETY IN THE FIRST PLACE. AND ONE OF THE LESSONS OF OUR HISTORY IS THAT WE TEND TO, IN FACT, GO OVERBOARD. AND WE TEND TO ERR TOO MUCH ON THE SIDE OF // SECURITY RATHER THAN LIBERTY. And the consequences can be disastrous (black) The attack on Pearl Harbor destroyed much of America s Pacific fleet, and killed over two thousand people. The very next day, President Franklin Delano Roosevelt addressed a joint session of Congress, asking it to declare war. FRANKLIN DELANO ROOSEVELT: YESTERDAY, DECEMBER 7 TH, 1941, A DATE THAT WILL LIVE IN INFAMY... Congress declared war 33 minutes after FDR was done with his speech. Within days, a thousand Japanese nationals were rounded up, as fear of fifth column activity or spying reached new levels of hysteria. JUSTICE STEPHEN G. BREYER: THERE WAS FEAR. THERE WAS UNCERTAINTY. I CAN REMEMBER SOME OF THAT. // I REMEMBER WE HAD TO PULL OUR CURTAINS DOWN IN THE Page 1 of 8 13

14 The Constitution Project Korematsu and Civil Liberties EVENING, // BLACK OUT CURTAINS, BECAUSE PEOPLE WERE AFRAID THAT WE WOULD BE BOMBED IN SAN FRANCISCO. JOHN FERREN: ELEVEN DAYS AFTER PEARL HARBOR // PRESIDENT ROOSEVELT ISSUED AN ORDER CREATING A COMMISSION TO LOOK INTO THE DEBACLE OF PEARL HARBOR. Supreme Court Justice Owen Roberts was picked to lead a commission to investigate the Pearl Harbor Attack. There was pressure to release a report quickly, so the commission did a number of interviews, but it didn t really gather evidence. Based on nothing more than hearsay, the Roberts report made wild and unsupported accusations about Japanese-Americans. GARY OKIHIRO: HE SAID THAT THERE WAS AN UNPRECEDENTED DEGREE OF FIFTH COLUMN ACTIVITY AND THAT SUBVERSIVE PRESENCE WERE THESE DISLOYAL JAPANESE AND JAPANESE- AMERICANS. // THAT WAS IRRESPONSIBLE, BECAUSE THERE WAS NOT A SHRED OF EVIDENCE TO DEMONSTRATE THAT. The hysteria generated by the Roberts Report resulted in calls to have the entire population of people with Japanese ancestry removed from the west coast actually physically taken away all 120,000 of them. JUSTICE ANTHONY KENNEDY: REMEMBER IGNORANCE FUELS FRIGHT. AND WE SIMPLY DIDN T KNOW MUCH ABOUT THE JAPANESE PEOPLE OR THE JAPANESE CULTURE OR OUR OWN FELLOW CITIZENS Now, it s important to know a little history about the Japanese in America. From the start, the US did not allow any immigrants from Asia to become citizens mostly for fear they would compete for jobs with white American citizens. And racism. So when the Japanese immigrants called Issei started arriving in the mid 19 th century, only their children who were born here called Nisei could be citizens because the 14 th Amendment said so. But for decades, states and cities passed laws discriminating against immigrants from Asia, like California s Alien Land Law. NAOKO SHIBUSAWA: AND THIS SORT OF LAW WAS MIMICKED ACROSS THE WEST COAST. OREGON PICKED IT UP, WASHINGTON ALSO PICKED IT UP. AND AS A RESULT, THEY WERE NOT ABLE TO BUY LAND. GARY OKIHIRO: NEXT THEY PASS: ALIENS INELIGIBLE FOR CITIZENSHIP COULD NOT RENT LAND IN CALIFORNIA. AND THEN A FEW YEARS LATER: ALIENS INELIGIBLE FOR CITIZENSHIP COULD NOT SHARECROP. All Japanese immigration was cut off in And despite all these obstacles, and on the worst land available, by 1941, Japanese Americans had somehow managed to produce more than 10% of the total value of California s resources. The war was likely to take that away KERMIT ROOSEVELT: CIVIL LIBERTIES GET TRAMPLED BASICALLY WHEN THERE S A LOT OF PUBLIC FEAR. The Secretary of War, Henry Stimson, along with the entire Congressional delegation from the three west coast states, argued for removal. JUSTICE STEPHEN G. BREYER: WELL THOSE WHO WERE IN FAVOR OF EVACUATION USED THIS ARGUMENT ABSOLUTELY TRUE THEY USED THIS, YOU WON T BELIEVE IT, YOU LL THINK I M MAKING IT UP, BUT I M NOT THEY SAID THE VERY FACT THAT THERE HAS BEEN NO ACT OF SABOTAGE SO FAR IS THE PROOF THAT SOME IS PLANNED AND INTENDED. Page 2 of 8 14

15 The Constitution Project Korematsu and Civil Liberties Some of the greatest civil libertarians in American history during peace, advocated for removing the Japanese during war. JUSTICE STEPHEN G. BREYER: AT THE TIME PEOPLE WHO WERE GREAT CIVIL LIBERTARIANS EARL WARREN // SAID THAT THE JAPANESE INCLUDING CITIZENS SHOULD BE EVACUATED FROM THE WEST COAST. // LATER, I HAVE TO ADD, SAID IT WAS THE GREATEST MISTAKE HE EVER MADE. But not everyone in the government bought into the hysteria. GEOFFREY STONE: MEN LIKE FRANCIS BIDDLE AS THE ATTORNEY GENERAL, WAS ACTUALLY QUITE HEROIC IN SAYING, THIS IS THE WRONG THING TO DO, WE SHOULDN T DO IT. The Attorney General said the Justice Department would have nothing to do with the evacuation. It was a position he and J. Edgar Hoover had maintained from the start. NAOKO SHIBUSAWA: THE FBI WAS SAYING, THESE PEOPLE AREN T A THREAT. AND SO YOU HAVE A FIGHT IN THE GOVERNMENT BETWEEN JUSTICE CIVILIANS AND THE MILITARY. The military won. President Franklin Delano Roosevelt was about to assert the kind of power that could only come to a Commander in Chief during wartime. JOHN FERREN: THE PRESIDENT TENDS TO ASSERT GREAT POWER DURING WARTIME EVEN TO THE POINT OF TAKING MEASURES THAT CAN RESTRICT CIVIL LIBERTIES BECAUSE HIS PRINCIPAL CONCERN // WOULD BE TO PROTECT THE NATION. FDR was in his third term as president when the war began. He had guided the nation through the Great Depression; no President was ever more powerful. On February 19, 1942, FDR signed Executive Order put the Secretary of War and his commanders in charge of deciding where the military zones would be and who should be removed. It gave the military power over the Attorney General to make these decisions without any hearings or due process. This was unprecedented power for a President even for FDR. He asked Congress to support Executive Order 9066, and it did. GARY OKIHIRO: CONGRESS FOLLOWED THAT WITH PUBLIC LAW 503, WHICH THEN // GAVE IT // POWER. The laws did not specifically name any race or ethnic group, but allowed the military to impose restrictions on anyone it deemed a threat. But everyone knew who would be targeted. Military Areas were created, and at first, curfews and other restrictions were imposed on everyone of Japanese descent. When the evacuation began on March 22, 1942, newsreels announced its start with a tone wavering between fear and contempt. This one, called Out They Go, never mentions that two-thirds of the evacuees were American citizens, but refers to them by a word we d never use today NEWSREEL: JAPS EVACUATE VITAL WEST COAST AREAS FOR THE NATIONAL SECURITY. AT LOS ANGELES, 36,000 JAPS SEE THE HANDWRITING ON THE WALL AND SELL OUT THEIR GOODS BEFORE THEIR VOLUNTARY DEPARTURE. The evacuation wasn t voluntary, it was the law. And before it even began, came mayhem, theft and loss. People were only allowed to take to the camps what they could carry on their backs. They had to make arrangements to store or get rid of everything else they owned on short notice. The lucky ones got two weeks, some only a few days. Page 3 of 8 15

16 The Constitution Project Korematsu and Civil Liberties NAOKO SHIBUSAWA: MOST JAPANESE AMERICANS HAD TO LEAVE THEIR PROPERTIES BEHIND. // THERE S LOTS OF INCIDENTS WHEN, YOU KNOW, THEY WERE CHEATED OR THEY WEREN T GIVEN FULL VALUE FOR THEIR PROPERTY. THERE WERE A LOT OF FIRE SALES THAT HAPPENED. // SO THEY HAD TREMENDOUS LOSSES. A Congressional report 40 years later detailed some of the loss: one proprietor had to sell her 26-room hotel for only $500 refrigerators were extorted for $5 or less. One man poured gasoline on his house, determined to burn it down rather than leave it behind. His wife stopped him, saying, we are civilized people, not savages. NEWSREEL: EMPTY STREETS AND VACATED STORES STAND IN SHADOW. // AND IN THE COUNTRY THE SAME STORY, ABANDONED FARMS. All they had left were suitcases, sheets and blankets. 120,000 people babies and the elderly. They were searched, some were even tagged. No one knew if they were going to be deported or how long they would be imprisoned because there were no trials, no hearings, and there was no due process to inform them. GARY OKIHIRO: THEY DIDN T KNOW WHAT THE INTENTION OF THEIR GOVERNMENT WAS TOWARD THEM AND THEY DIDN T KNOW WHAT THE FUTURE HELD. The evacuation took almost 18 months. Eight thousand actually moved east to parts of the country outside of the military areas to avoid internment. The whole thing took place in stages. First, evacuees were taken by buses, cattle trucks and trains to nearby Assembly Centers, where they would be checked in for a few weeks, before being shipped out to the more permanent Internment Camps. GARY OKIHIRO: ASSEMBLY CENTERS WERE OFTENTIMES // TEMPORARY SHELTERS IN FAIRGROUNDS AND SOMETIMES IN // HORSERACING TRACKS. // THE CONDITIONS WERE EXCEEDINGLY ROUGH. // HORSE STALLS THAT WERE HASTILY CLEANED UP OF THE MANURE AND THE SMELL AND SO FORTH NORMAN MINETA: THE FIRST THING WE HAD TO DO WAS // TO MAKE OUR OWN MATTRESSES. Norman Mineta was born in San Jose, California. He grew up to be a Congressman, and the first Asian- American to serve in the Cabinet he served under BOTH President Clinton and President Bush. NORMAN MINETA: THE IDEA THAT THEIR OWN GOVERNMENT THOUGHT THEM TO BE DISLOYAL // THIS WAS A YOKE OF SHAME THAT WAS BORNE BY THE JAPANESE-AMERICAN POPULATION FROM THAT TIME ON. JOHN TATEISHI: THIS IS WHAT WE WOULD DO TO SHOW THIS COUNTRY THE EXTENT OF OUR LOYALTY John Tateishi was born in South Central Los Angeles. JOHN TATEISHI: WE LL GIVE UP EVERYTHING. WE LL SACRIFICE EVERYTHING WE OWN AND ALL OUR FUTURES AND GO QUIETLY INTO THESE // CAMPS. IT WAS ASTOUNDING. People were confined in camps at some point from May of 1942 to as late as But at first, many camps weren t even ready. Sewage systems, schools, winter insulation, all had to be built by the very people who were being forced to live there. Most were in the desert, where sandstorms were common. Others were built on swamps and overrun by mosquitoes. NORMAN MINETA: ALL OF THE CAMPS THEY BUILT WERE IN ISOLATED SPOTS. Page 4 of 8 16

17 The Constitution Project Korematsu and Civil Liberties GARY OKIHIRO: TEN OF THEM SCATTERED THROUGHOUT THE AMERICAN WEST AND //A COUPLE IN // ARKANSAS. Heart Mountain, Poston and Tule Lake were the largest. Tule Lake also housed those whose loyalty the government specifically questioned. The War Relocation Authority, or WRA, called them Relocation Centers. NORMAN MINETA: I REMEMBER WHEN THEY WOULD SAY, WELL, UH, YOU RE BEING INTERNED FOR YOUR OWN PROTECTION. WELL, AS A 10-, 11-YEAR-OLD KID I KNEW THAT IF I WERE IN HERE FOR MY OWN PROTECTION WHY ARE THE MACHINE GUNS POINTING IN AT US AND NOT OUT? JOHN TATEISHI: WE HEARD THIS YOUNG, YOUNG MAN SHOUTING AND SAYING, AS I RECALL, SOMETHING ABOUT THEY COULDN T KEEP HIM THERE, HE WAS AN AMERICAN. HE STARTED WALKING OUT AND THE GUARD, WHO WAS PROBABLY ABOUT 15 FEET FROM HIM JUST SHOT HIM IN THE STOMACH. It was a felony for anyone of Japanese descent to live in Oakland on the afternoon of May 30, That made 22-year-old Fred Korematsu a criminal. He had defied the evacuation order to stay behind with his Italian-American girlfriend. When he was arrested on this street corner in San Leandro, he knew that the shame of internment would be nothing compared to how his family would react. KAREN KOREMATSU-HAIGH: WHEN MY GRANDPARENTS GOT WORD IN TANFORAN RACETRACK THAT MY FATHER HAD BEEN ARRESTED, I KNOW THAT IT BROUGHT GREAT SHAME TO THEM. // HE WAS TREATED, YOU KNOW, LIKE THE PLAGUE. I MEAN, NO ONE WANTED ANYTHING TO DO WITH HIM. Fred Korematsu had lost his home, his job and even his girlfriend. He was outraged that an American citizen would be treated like this, so he challenged his arrest. He tested his faith in the Constitution by appealing his case all the way up to the Supreme Court. The Korematsu case lingered for over two years. It was finally argued before the Court over two days on October 11 th & 12 th in Korematsu s attorneys argued that Executive Order 9066 was a violation of the 14 th Amendment s guarantee of equal protection because only citizens of Japanese ancestry were being forced to report to the Assembly Centers. And the fact that they were detained without a hearing or trial was a violation of their 5 th Amendment right of due process, protecting them against the federal government. Solicitor General Charles Fahy argued the case for the United States that, in time of war, the government and especially the President as Commander in Chief could do what was necessary for the nation s security even discriminate on the basis of race. AKHIL AMAR: YOU HAVE TO REMEMBER, AT THE TIME OF KOREMATSU, // BROWN VERSUS BOARD OF EDUCATION HASN T YET BEEN DECIDED. SEGREGATION IS STILL THE LAW OF THE LAND. The Supreme Court handed down one of its most controversial decisions on December 18, JAN CRAWFORD GREENBURG: THE SUPREME COURT RULED IN A 6 TO 3 DECISION THAT PRESIDENT ROOSEVELT S ORDER // WAS CONSTITUTIONAL. GEOFFREY STONE: THE COURT SAID THAT THIS IS TIME OF WAR, AND IN TIME OF WAR IT IS NECESSARY TO DO THINGS THAT MIGHT NOT BE PERMISSIBLE IN TIME OF PEACE. Justice Hugo Black, who later became known as one of the Court s great champions of civil liberties and equal rights, wrote the majority decision that accepted the government s argument of military necessity. Page 5 of 8 17

18 The Constitution Project Korematsu and Civil Liberties AKHIL AMAR: IMAGINE YOU RE A JUDGE: SUPPOSE YOU DON T BELIEVE THE MILITARY, BUT YOU MIGHT POSSIBLY BE WRONG. AND IF YOU RE WRONG, WHAT WILL HAPPEN IF YOU ACTUALLY SHUT DOWN A GOVERNMENT POLICY, A SECURITY POLICY, AND THEN THERE S ANOTHER ATTACK? JUSTICE ANTHONY KENNEDY: YOU THINK SOME JUDGE KNOWS AS MUCH AS GENERAL EISENHOWER? // SO OF COURSE WE MUST GIVE GREAT DEFERENCE // TO OFFICIALS WHO TELL US, WE HAVE A PROBLEM, WE KNOW THE SITUATION, AND WE NEED YOU TO UNDERSTAND THAT. For Justice Black, deference to the military while at war was more important than the racial nature of the internment. He wrote that Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because the country was at war with the Japanese Empire. JAN CRAWFORD GREENBURG: OTHER JUSTICES CERTAINLY DIDN T SEE IT THAT WAY. JUSTICE FRANK MURPHY, FOR THE VERY FIRST TIME EVER IN A SUPREME COURT OPINION, USED THE WORD RACISM. // THE UNITED STATES GOVERNMENT IN THIS ORDER WAS TARGETING JAPANESE AMERICANS. IT WASN T LOOKING AT OTHER GROUPS THAT THE COUNTRY WAS ALSO AT WAR AGAINST ITALIANS, GERMANS ONLY THE JAPANESE. AND TO JUSTICE MURPHY, THAT CLEARLY SHOWED THAT THAT ORDER WAS RACIST. FERREN: Murphy also said he couldn t see any military necessity for this order. Justice Murphy also insisted that there was no evidence to justify the President s internment order and that the majority decision in this case would allow the President to act outside the law. JUSTICE ANTHONY KENNEDY: MURPHY MADE A POWERFUL DISSENT // PRESIDENTS MUST BE REMINDED THAT THEY TOO ARE SUBJECT TO THE LAW. // // AND THE LAW MUST INSIST THAT THE LAW MUST ALWAYS BE OBEYED. ONCE WE DEPART FROM THAT RULE, THERE S NO STOPPING. JUSTICE STEPHEN G. BREYER: IT IS A DANGEROUS THING TO TELL THE PRESIDENT HE CAN IGNORE THE LAW, OR TO EXPECT HIM TO, OR TO PUT HIM IN THE POSITION OF HIS HAVING TO DO SO TO SAVE THE COUNTRY. Also dissenting was Justice Roberts the same Justice Roberts whose Pearl Harbor report created so much hysteria about Japanese spies on the mainland. By 1944, he no longer believed the military. GEOFFREY STONE: JUSTICE ROBERTS // SAYS THAT WE HAVE TO BE VERY SKEPTICAL ABOUT THE CLAIMS OF THE GOVERNMENT IN THESE CIRCUMSTANCES, AND WE HAVE TO HOLD THE GOVERNMENT TO A VERY HIGH STANDARD OF JUSTIFICATION. AND ONE HAS TO WONDER WHETHER ROBERTS // DIDN T WANNA MAKE THE SAME MISTAKE THE SECOND TIME. The third dissent was written by Justice Robert Jackson. FRANK WU: JUSTICE JACKSON ACTUALLY REFERRED TO THE PRECEDENT THAT THE MAJORITY WAS CREATING AS A LOADED WEAPON. JUSTICE STEPHEN G. BREYER: AND HE SAID, IF WE UPHOLD THAT, WELL THAT PRECEDENT WILL STAND LIKE A LOADED GUN READY TO BE PICKED UP BY SOMEONE IN THE FUTURE WHO WILL USE IT TO JUSTIFY WHO KNOWS WHAT. FRANK WU: HE THOUGHT IT MEANT THAT THE COURTS AND THE RULE OF LAW WERE BEING ERODED DURING WARTIME. Page 6 of 8 18

19 The Constitution Project Korematsu and Civil Liberties The decision came near the end of the war. Germany surrendered about six months later, and the United States had turned back the Japanese in the Pacific, making a Japanese invasion of the west coast unthinkable. JOHN FERREN: THE TIDES OF WAR HAD CHANGED MUCH MORE FAVORABLY TO THE UNITED STATES BY THE TIME THE KOREMATSU DECISION CAME DOWN. A month after the Korematsu decision, the camps officially began to close. Going home was the next challenge. GARY OKIHIRO: THEY FELT THAT THEY WOULD BE GREETED WITH HOSTILE NEIGHBORS AND SO FORTH. AND WORD ALSO CAME BACK THAT MANY OF THEIR // FARMS HAD IN FACT BEEN DESTROYED, TORCHED BY PEOPLE. For all the fear of sabotage that led to internment, by the end of World War II, not a single person of Japanese ancestry in the United States had even been accused of sabotage Fred Korematsu waited 40 years before he got the chance to clear his name. He joined up with a team of young lawyers led by Dale Minami. DALE MINAMI (YOUNG): COURTS MUST BE ALLOWED TO FUNCTION EVEN DURING TIMES OF CRISES, AND SHOULD NOT BE SUBJUGATED TO THE WILL OF AN ARBITRARY MILITARY DECISION MAKER. DALE MINAMI: WE WANTED A DECLARATION FROM THE COURTS // THAT WHAT JAPANESE AMERICANS DID WAS NOT WRONG. IT WAS NOT ESPIONAGE. IT WAS NOT SABOTAGE. THEY WERE NOT TRAITORS. Normally, once the Supreme Court decides a case, that s it. The case is closed. But Minami and his team brought the Korematsu case back to federal court under a motion that is rarely used, and almost never successful coram nobis. JAN CRAWFORD GREENBURG: CORAM NOBIS IS // A WAY THAT SOMEONE CAN GO INTO COURT AFTER THEY VE BEEN CONVICTED AND SERVE THEIR SENTENCE AND CHALLENGE IT TO SAY THIS WAS WRONG. THE FACTS WERE WRONG AND THIS COURT HAS A DUTY TO CORRECT IT. A legal historian named Peter Irons had discovered documents proving that government lawyers had hidden evidence from the Supreme Court. On November 10, 1983, the US District Court agreed. Fred Korematsu s conviction was vacated it was thrown out. FRED KOREMATSU: I HAD TO DO SOME REAL DEEP THINKING IN ORDER TO REOPEN THIS CASE AGAIN AND I AM VERY HAPPY THAT I DID, BECAUSE THIS IS NOT ONLY FOR JUST THE JAPANESE- AMERICAN CITIZENS BUT IT S FOR ALL AMERICAN CITIZENS. In 1988, Congress passed the Civil Liberties Act, which not only apologized for the internment, but paid each survivor of the camps $20,000. The Act was signed by President Ronald Reagan and sponsored by Congressman Norman Mineta. That s him right there. He learned during a time of war, the ultimate defense of civil liberties may not come from the courts, but from American citizens exercising their right to vote. NORMAN MINETA: ALL OF A SUDDEN, THE CONSTITUTION REALLY DIDN T HOLD UP FOR US. // MY EXPERIENCE FROM HAVING SEEN THE EVACUATION, THE INTERNMENT THE REASON THAT HAPPENED TO THE JAPANESE-AMERICAN POPULATION WAS THAT, // IN 1942, WE WERE ABOUT AS POPULAR AS SKUNKS AT A GARDEN PARTY AND SO WE HAD NO ACCESS TO OUR POLITICAL OFFICEHOLDERS. Page 7 of 8 19

20 The Constitution Project Korematsu and Civil Liberties AKHIL AMAR: SO THE JAPANESE-AMERICANS WERE VULNERABLE BECAUSE THERE WASN T A POLITICAL COALITION IN PLACE THAT WOULD DEFEND THEIR INTERESTS. // WE HAVE A MUCH MORE MULTI-CULTURAL SOCIETY AND A MUCH MORE MULTI-CULTURAL VOTING BASE THAN WE HAD IN THE 1940S. AND THAT S WHAT WILL PROBABLY PROTECT LIBERTY MOST OF ALL, THE RIGHT TO VOTE. In 1998, President Clinton awarded the Presidential Medal of Freedom to Fred Korematsu the highest honor an American civilian can receive. America had officially and from the very top, apologized for the internment. But there s a hitch. You see, only the Supreme Court can really overturn a Supreme Court precedent. Because Korematsu s case was vacated by the District Court and never made it all the way back to the Supreme Court Justice Black s decision still stands. It s what they call, good law. Technically, the military still has the Supreme Court s blessing to remove an entire race of people from the population during wartime. JAN CRAWFORD GREENBURG: KOREMATSU REMAINS GOOD LAW. IT S STILL ON THE BOOKS. AKHIL AMAR: KOREMATSU HAS NEVER OFFICIALLY BEEN OVERRULED BY THE COURT. // ON THE OTHER HAND, THE JUDGES DON'T LIKE CITING KOREMATSU. THEY DON'T CITE IT WITH APPROVAL. IT'S MUCH MORE COMMON TO SEE A JUDGE OR A JUSTICE CITE ONE OF THE DISSENTS IN KOREMATSU. DALE MINAMI: THE VALUE OF THE PRECEDENT HAS BEEN IMPAIRED TERRIFICALLY. // TO TAKE AWAY AN ENTIRE RACE OF PEOPLE, TWO-THIRDS OF WHOM WERE AMERICAN CITIZENS, WITHOUT ANY EVIDENCE OF ESPIONAGE OR SABOTAGE, // HOW COULD THAT BE PART OF OUR UNITED STATES CONSTITUTION OUR AMERICAN DEMOCRATIC HERITAGE? JUSTICE STEPHEN G. BREYER: IT WAS NOT NECESSARY. // I HOPE IT WOULDN T BE REPEATED. I THINK IT IS UNIVERSALLY ACKNOWLEDGED THAT THAT WAS AN ERROR. It s unlikely that the Korematsu decision would serve as a precedent for a comparable case today. But if future threats to national security endanger civil liberties again, perhaps instead of fear, Americans will embrace the Constitution. JUSTICE ANTHONY KENNEDY: COULD IT HAPPEN AGAIN? OF COURSE IT COULD HAPPEN AGAIN. // THE CONSEQUENCES OF FEAR IS THAT YOU MAY TEND TO FORGET YOUR COMMITMENT // TO PROTECT YOUR CONSTITUTIONAL HERITAGE. // THE CONSTITUTION BELONGS TO THE PEOPLE; CONSTITUTION DOESN T BELONG TO A BUNCH OF JUDGES OR LAWYERS. IT BELONGS TO THE PEOPLE. PEOPLE HAVE TO UNDERSTAND IT. THEY HAVE TO RESPECT IT. THEY HAVE TO REVERE IT. THEY HAVE TO DEFEND IT. Page 8 of 8 20

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